Smooth Payment Inc. v. Klarna Bank Ab, 2024 FC 1274 is a recent decision from the Federal Court involving a Section 45 notice that was never received by the registered owner.

On 6 December 2022, at the request of Klarna Bank Ab, the Registrar of Trademarks issued four Section 45 notices against four trademark registrations that SPI did not respond to the Section 45 notices and consequently the Registrar sent a notice to SPI stating that they would expunge the registrations.

SPI appealed the decision and introduced evidence that SPI’s trademark agent never received the Section 45 notices that the Registrar issued.

Citing Arbour Recycled Products v Canada (Attorney General), 2010 FC 925, [Arbour] the Court acknowledged that trademark registrants are permitted to adduce new evidence on appeal even if no evidence was filed in response to a Section 45 notice.

The Court reviewed evidence submitted by SPI purporting to show use of the four trademarks. Ultimately, the Court expunged two of SPI’s trademark registrations, maintained one, and partially expunged the fourth trademark registration.

The case is a reminder to trademark agents and trademark registrants of the potential significant consequences of failing to receive and respond to a Section 45 notice.